Overview on Intellectual Property Rights
Intellectual property rights are rights granted to inventors, artists, and other creators regarding the use of their innovations. Domestically, this usually occurs through laws regarding protection of copyrights, patents and trademarks. In the past ten years, however, the introduction of intellectual property rights in international trade policy has raised serious concerns regarding public health, sustainable development, biodiversity, and cultural rights.

The 1986-1994 Uruguay round of the WTO produced the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) in an effort to develop common international rules on intellectual property rights and to enforce these rules through the WTO’s powerful dispute settlement system. The resulting agreement established changes to domestic patent laws as well as new enforcement mechanisms.

The North American Free Trade Agreement’s (NAFTA) Chapter Seventeen on Intellectual Property created provisions similar to the WTO’s TRIPs, but in some ways NAFTA’s rules are more extensive. The failure to meet NAFTA’s IPR rules can lead to more than the trade sanctions allowed in WTO enforcement. NAFTA’s implementing legislation required member countries’ criminal codes to be rewritten to provide for criminal penalties for violations of intellectual property rights.

The threat to public welfare from intellectual property rules comes when the protection of a patent-holder’s rights to exclusive use of an invention or article come at the expense of social and environmental needs. Developing countries had traditionally excluded food and medicine from their IPR laws to insure that these basic necessities are accessible, affordable and not controlled by monopolies. But now under trade rules, living things – plant, animal, and human – can be patented on a world-wide scale. Some of the most harmful applications of international IPR have been with regard to seeds, plants and animals, and medicines.

The patenting of genetically engineered seeds, effectively criminalizes seed saving, the traditional practice of gathering seeds after a harvest for the planting of future crops. This way, seed companies with patents are able to force farmers to purchase their seeds each year, raising farmers’ costs, and increasing dependence on agribusiness corporations. Farmers’ traditional varieties of corn and other crops are threatened as genetically engineered varieties cross-pollinate. Once crops are contaminated, saving the seeds is restricted. To retain rights over their own varieties, farmers are required to pay licensing fees that are unaffordable to many.

Farmers and public agricultural research institutions once freely exchanged seeds and together bred varieties adapted to unique local conditions. Now, however, the major transnational agri-chemical corporations have aquired and patented germplasm- limiting access and charging royalties for their use in research and crop production. These applications of IPR rules have serious ramifications for equitable development and global food security.

Cultural knowledge and use of plants is another target of patenting. IPR rules allow pharmaceutical and genetic engineering companies to freely draw on centuries of traditional knowledge to patent traditional remedies, restricting their use with no benefit to the community of culture from which this knowledge comes. Bioprospecting in developing countries poses a serious risk to biodiversity, though IPR rules limit governments’ abilities to protect biological resources from becoming the exclusive property of corporations.

One of the most highly debated applications of TRIPS is drug patenting. The US, prompted by pharmaceutical companies, has utilized international IPR to sue the governments of developing countries for manufacturing generic versions of patented drugs. In many poor countries, where the cost of patented drugs is prohibitively expensive, cheap medicines are relied on to treat public health crises such as AIDS as well as other potentially deadly health problems like diarrhea.

Recently, efforts by the governments of developing countries and health advocacy groups has produced some gains in IPR rules. In the 2001 WTO Doha Round, the Declaration on TRIPs and Public Health provided a limited amount of flexibility to allow the domestic manufacture of generic drugs for public health crises. The definition of public health crisis within the declaration, however, is narrow and highly disputed, and the declaration still maintains the illegality of importing generic medicines from neighboring countries.

In the negotiations for a Free Trade Area of the Americas (FTAA) and other free trade agreements including the US-Chile Free Trade Agreement and the US-Singapore Free Trade Agreement, the US has introduced “TRIPS-plus” provisions which more aggressively protect patented drugs, plants, and seeds from public use, and in some cases backtrack on the limited gains made in the Doha Declaration.